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Cem Kaner, Ph.D., J.D. c/o Dept of Computer Sciences, Florida Tech
Law Office of Cem Kaner  150 West University Blvd.
kaner@kaner.com  Melbourne, FL 32901-6988

NONDISCLOSURE AND UCITA

In an article entitled, "Correcting Some Myths About UCITA" (http://www.2bguide.com/docs/rne.html), Ray Nimmer says that public debate "should be based on reasonably correct facts, rather than distortions." He then cites and seems to refute a series of alleged misrepresentations of UCITA.

One comment in Ray's paper involves nondisclosure. Ray says:

You Will Not Find Any Such Provision

Read UCITA 102(a)(20):

A nondisclosure clause is a contractual use restriction. Under UCITA, contractual use restrictions are normally enforceable whether they are in mass-market contracts or not.

The Clauses at Issue

Attached is a copy of restrictions imposed on users of VirusScan, a mass-market software product. I obtained these from the VirusScan site,www.mcafee.com, on July 20, 1999.

Actual Prevention

An apparently comparable clause, enforced by Oracle, led to the attached article, "The Test That Wasn't" in the August 1999 issue of PC Magazine, page 29. According to that article,

As a result, PC Magazine did not publish benchmarks.

A free market requires a free flow of competitive information. How else can buyers make informed choices?

This case involved a non-mass-market product. Nondisclosures are enforceable in that market today. But nothing in the statutory language (there are no official comments for us to review) of UCITA tells us that these apparently enforceable restrictions should not be enforced in the mass-market.

A court might refuse to enforce such a restriction in a particular case. However, as a lawyer who advises writers, under UCITA I would be much more cautious in my advice to a journalist who wanted to review McAfee than I would be today. I've discussed this clause with others who counsel journalists. They've told me that they feel the same way. UCITA's wording appears to make a mass-market nondisclosure clause enforceable, whereas we doubt strongly that an American court would enforce the clause in the absence of UCITA.

Ultimately, after several expensive court battles, I think that such clauses will be found to conflict with public policy. Until then, the plain language of UCITA will have a chilling effect on free criticism of mass-market products.


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The articles at this web site are not legal advice. They do not establish a lawyer/client relationship between me and you. I took care to ensure that they were well researched at the time that I wrote them, but the law changes quickly. By the time you read this material, it may be out of date. Also, the laws of the different States are not the same. These discussions might not apply to your circumstances. Please do not take legal action on the basis of what you read here, without consulting your own attorney.
Questions or problems regarding this web site should be directed to Cem Kaner, kaner@kaner.com.
Last modified: July 25, 1999. Copyright © 1999, Cem Kaner. All rights reserved.